Hegeman v. Conrad

• Decision Date: 14 January 1957
• Citation: 158 N.Y.S.2d 372,3 A.D.2d 667
• Parties: Annie HEGEMAN and Walter D. Hegeman, Respondents, v. A. Alfred CONRAD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 372

158 N.Y.S.2d 372

3 A.D.2d 667

Annie HEGEMAN and Walter D. Hegeman, Respondents, v. A. Alfred CONRAD, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 14, 1957.

Reargument and Appeal Denied Feb. 18, 1957. See 160 N.Y.S.2d 813.

Seymour J. Ugelow, New York City, for appellant.

Frank Balletta, New York City, for respondent.

Before NOLAN, P. J., and BELDOCK, MURPHY, HALLINAN and UGHETTA, JJ.

MEMORANDUM BY THE COURT.

The further amended complaint alleges a first cause of action to set aside a stipulation of settlement made in a prior action, and a second cause of action for an accounting. The appeal is from an order insofar as it denies a motion under rule 106 of the Rules of Civil Practice to dismiss the first cause of action for insufficiency.

Order insofar as appealed from affirmed, with $10 costs and disbursements.

In our opinion, the allegations of fraud and overreaching, coupled with the further allegations that the respondents' minds were overcome, that they were deprived of free will, and that they were in a state of great apprehension and fear, constitute a sufficient first cause of action. Such allegations are required to be accepted as true as a matter of pleading, Schwartz v. Heffernan, 304 N.Y. 474, 482, 109 N.E.2d 68, 70; 2 Wigmore on Evidence (3d ed.), p. 774, although of seeming improbability. Trenkman v. Smith, 226 App.Div. 774, 775, 235 N.Y.S.2d 43, 44.

BELDOCK, MURPHY and HALLINAN, JJ., concur.

NOLAN, P. J., and UGHETTA, J., dissent and vote to modify the order by striking from the first ordering paragraph the word 'denied' and by substituting therefor the word 'granted', with the following memorandum:

The first cause of action pleaded in the further amended complaint in our opinion fails to state facts sufficient to constitute any cause of action based on coercion, overreaching or fraud. One to whom false representations have been made cannot complain that he was induced to act on them, if the facts are not peculiarly within the knowledge of the party making the representations, and the one to whom the representations have been made has the means of knowing, by the exercise of ordinary intelligence, the truth or falsity of the representations made. Schumaker v. Mather, 133 N.Y. 590, 30 N.E. 755. Consequently, allegations in the further amended complaint that appellant conspired to mislead respondents' former counsel by stating to him that respondents were not disclosing the whole truth to their...